Professional Documents
Culture Documents
399
89 S.Ct. 1107
22 L.Ed.2d 367
[400]
names of the candidates of the National Democratic Party of Alabama
(NDPA). This order was dissolved on October 11, 1968, one judge
dissenting. 295 F.Supp. 1003. The appellants sought interim relief from
this Court pending appeal, and on October 14, 1968, we entered an order
that: 'The application for restoration of temporary relief is granted pending
oral argument on the application * * *.' 393 U.S. 815, 89 S.Ct. 138, 21
L.Ed.2d 90 (1968). Oral argument was heard on October 18, and on
October 19 we entered an order that: 'The order entered on October 14,
1968, restoring temporary relief is continued pending action upon the
jurisdictional statement which has been filed.' 393 U.S. 904, 89 S.Ct. 227,
21 L.Ed.2d 208. Nevertheless, Judge Herndon, who was responsible for
the preparation of the Greene County ballot for local offices, did not place
the NDPA candidates for such offices on the ballot. We conclude that
decision on the motion should await timely initiation and completion of
affirmative acts unlawfully kept the NDPA candidates off the ballot. Rule
42(a) of the Federal Rules of Criminal Procedure governs contempt in the
presence of the court. Rule 42(b) covers the contempt alleged here, viz.,
disrespect or violation of this Court's order. Rule 42(b) provides: 'A
criminal contempt except as provided in subdivision (a) of this rule shall
be prosecuted on notice. The notice shall state the time and place of
hearing, allowing a reasonable time for the preparation of the defense, and
shall state the essential facts constituting the criminal contempt charged
and describe it as such. The notice shall be given orally by the judge in
open court in the presence of the defendant or, on application of the
United States attorney or of an attorney appointed by the court for that
purpose, by an order to show cause or an order of arrest. The defendant is
entitled to a trial by jury in any case in which an act of Congress so
provides. He is entitled to admission to bail as provided in these rules. If
the contempt charged involves disrespect to or criticism of a judge, that
judge is disqualified from presiding at the trial or hearing except with the
defendant's consent. Upon a verdict or finding of guilt the court shall enter
an order fixing the punishment.' I would issue the notice prescribed by
Rule 42(b), designate an attorney to represent the Court, appoint a Master,
and get on with the hearings. Reservation of action on the motion
implicates the Double Jeopardy Clause. Successive federal prosecutions
of the same person based on the same acts are prohibited by the Fifth
Amendment.1 See United States v. Lanza, ----------1 .'Our minds rebel
against permitting the same sovereignty to punish an accused twice for
the same offense.' State of La. ex rel. Francis v. Resweber, 329 U.S. 459,
462, 67 S.Ct. 374, 375, 91 L.Ed. 422 (opinion of Reed, J.).
1[403]
260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314; Abbate v. United States, 359 U.S.
187, 197, 79 S.Ct. 666, 13 L.Ed.2d 729 (opinion of Brennan, J.). It was held in
Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 363, 98 L.Ed. 435, that: '(A)
defendant may be convicted of (two offenses) even though the charges arise from a
single act or series of acts, so long as each requires the proof of a fact not essential to
the other.' In the instant case, however, it is likely that the facts underlying both
contempt charges will be identical. In fact, it may have been impossible for Judge
Herndon to have violated one court order without violating the other.2 ----------2 .'The
Constitutional safeguard (against double jeopardy) applies * * * (where) a person
has been tried and convicted of a crime and it is sought to prosecute him again for
the same or an included offense; (where) a person has been convicted and sentenced
and an attempt is made to increase the sentence; (and where) a person has been
acquitted after a trial on the merits and an endeavor is made to prosecute him again
for the same or an included offense.' United States v. Whitlow, 110 F.Supp. 871,
872 (D.C.D.C.1953). Federal Marine Terminals, Inc. v. Burnside Shipping Co.
[89SCt1144,394US404,22LEd2d371] 89 S.Ct. 1144 394 U.S. 404 22 L.Ed.2d 371
FEDERAL MARINE TERMINALS, INC., Petitioner, v. BURNSIDE SHIPPING
CO. Ltd.
2No. 291.
3Argued Jan. 15, 1969.
4Decided April 1, 1969.
5
I.
9
According to the stipulation of facts, the M/V Otterburn, owned and operated
by respondent Burnside Shipping Co., was under time charter to Federal
Commerce and Navigation Co., a Canadian corporation affiliated with the
petitioner, Federal Marine Terminals, Inc. Federal Commerce hired Marine
Terminals to continue the operation, already commenced by the ship's crew, of
preparing the vessel to receive a cargo of grain. While the ship was docked in
Detroit, the crew had commenced installation of 'grain feeders'walled-in
structures erected in the 'tween deck hatches to the height of the main deck
hatch. After Marine Terminals had been employed to continue the work of
readying the ship for its cargo, the boatswain, acting on the instructions of the
ship's Chief Officer, 'winged out' the deep tank lidsthat is, pulled them
outboard into the wings of the 'tween deck. No railing, wire, or guard of any
kind was placed around the resulting deep tank openings.
10
Marine Terminals' employees began working on the Otterburn after it had been
removed the Chicago. On the morning of the third day of work, a group of
Marine Terminals' stevedores, supervised by Gordon McNeill, arrived at
approximately 7 o'clock to continue with carpentry work in the 'tween deck as
part of the last stages of completing a grain feeder in the area of the 'winged
out' deep tank lids. McNeill was last seen alive shortly after 8 a.m. At 8:45 a.m.
his lifeless body was discovered lying at the bottom of one of the deep tanks.
There were no witnesses to his 30-foot fall.
11
McNeill's widow filed a claim for benefits under the Act for herself and three
minor children, and the Department of Labor entered a compensation order for
weekly payments of $36.75 to the widow and $33.25 to the children. The
potential total liability of Marine Terminals for these payments is
approximately $70,000. As administratrix of McNeill's estate, his widow also
filed a maritime wrongful death action against Burnside Shipping Co. in the
United States District Court for the Northern District of Illinois. Burnside
answered the complaint, denying that McNeill's death had been caused by its
negligence or by its failure to furnish a seaworthy vessel.
12
Burnside also commenced a separate action in the same court against Marine
Terminals seeking indemnification for any judgment it might be required to pay
in the wrongful death action. The libel charged that, by virtue of the agreement
with the time charterer to prepare the ship for its cargo, Marine Terminals
'warranted that its services to the vessel would be performed in a safe,
workmanlike and seamanlike manner.' That warranty was alleged to have been
breached and the accident caused by Marine Terminals' negligence, giving rise
to an obligation to save Burnside harmless from all liability and expense
occasioned by McNeill's death.
13
Marine Terminals filed an answer denying most of the allegations of the libel,
and also filed a counterclaim seeking damages from Burnside for 'all sums
which have been paid or will be paid' as compensation benefits to McNeill's
dependents. The counterclaim alleged that Burnside, as owner and operator in
control of the Otterburn, owed the stevedoring contractor 'the duty of providing
and maintaining a safe place to work so that injury to the employees * * *
would be avoided.' Burnside had violated that duty, according to the
counterclaim, by its negligence.
14
'in failing to properly guard the deep tank opening, or make the passageway
secure, or to cover up the said deep tank, and in failing to clear the
passageways, and failing to provide adequate lighting in the area or to provide a
safety railing around the deep tank opening, thereby causing, suffering and
permitting the area and open deep tank to be a source of menace and danger.'
15
Burnside oved to dismiss the counterclaim for failure to state a cause of action.
Each party then filed a motion for summary judgment on its claim and
counterclaim.
16
The District Court, finding that material factual disputes existed concerning the
conduct of both parties, denied Burnside's motion for summary judgment on its
complaint.6 But it did grant the motion to dismiss Marine Terminals'
counterclaim. The court noted Marine Terminals' concession that its theory of a
direct action against the shipowner was novel. Normally the stevedoring
contractor is content with its remedy of subrogation to the rights of the
deceased longshoreman's representative against whatever third party may be
liable for the death, usually the shipowner. In this case, however, the applicable
Illinois Wrongful Death Act limited the amount recoverable by the decedent's
representative to $30,000,7 far short of Marine Terminals' potential liability of
$70,000. The court recognized that '(t)he existence of such a direct right over is
well established in certain situations,'8 but concluded that the employer's rights
provided by the Longshoremen's and Harbor Workers' Compensation Act are
exclusive and 'prevent him from maintaining an independent cause of action
against the third party tortfeasor.'9
17
The Court of Appeals affirmed, agreeing that Marine Terminals' sole remedy is
by subrogation under the Act. But while the District Court had implied that the
stevedoring contractor would have had a direct action had it not been abrogated
by the Act, the Court of Appeals appeared to assume that, in the absence of the
statutory remedy, federal maritime law would permit no direct recovery from
the shipowner:
18
'There is no common law direct action as the defendant argues. There is only
the Longshoremen's and Harbor Workers' Compensation Act which creates an
entire legal procedure in this part of admiralty law. We cannot search outside of
the Act for common law remedies which do not exist. The Act is the source of
all remedies.'10
19
This case thus presents two questions. First, does 33 of the Act exclude
whatever other rights of action the stevedoring contr ctor might have against
The Court of Appeals was clearly mistaken in its assertion that '(t)he statutory
method provides that the (stevedoring contractor) can sue only as a subrogee.'11
Nothing on the face of 33 of the Act purports to limit the employer's remedy
against third persons to subrogation to the rights of the deceased employee's
representative. The provision of 33 that the employer's payment of
compensation 'shall operate as an assignment to the employer of all right of the
legal representative of the deceased * * * to recover damages against such third
person' contains no words of limitation. Congress thereby gave the employer, in
return for his absolute liability to the employee's representative, part of the
latter's rights against others. But the legislative grant of a new right does not
ordinarily cut off or preclude other nonstatutory rights in the absence of clear
language to that effect. When Congress imposed on the employer absolute
liability for compensation, it explicitly made that liability exclusive.12 Yet in
the same Act it attached no such exclusivity to the employer's action against
third persons as subrogee to the rights of the employee or his representative.
21
Nothing in the legislative history of the Act remotely supports the construction
adopted by the courts below. And we can perceive no reason why Congress
would have intended so to curtail the stevedoring contractor's rights against the
shipowner. The exclusivity of the statutory compensation remedy against the
employer was designed to counterbalance the imposition of absolute liability;
there is no comparable quid pro quo in the relationship between the employer
and third persons. On the contrary, as we emphasized in Ryan Stevedoring Co.
v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, the Act
is concerned only with the rights and obligations as between the stevedoring
contractor and the employee or his representative. It does not affect
independent relationships between the stevedoring contractor and the
shipowner. Neither this Court13 nor, before this case, any other court14 has held
that statutory subrogation is the employer's exclusive remedy against third party
wrongdoers, and we decline to so hold today.
III.
22
We must also reject the implication of the Court of Appeals' opinion that under
federal maritime law the shipowner owed the stevedoring contractor no duties
whose breach would give rise to a direct action for damages. As we held in
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct.
406, 410, 3 L.Ed.2d 550, 'the owner of a ship in navigable waters owes to all
who are on board for purposes not inimical to his legitimate interests the duty
of exercising reasonable care under the circumstances of each case.' That duty
of due care imposed by law extends to the stevedoring company as well as to
others lawfully on the ship, and its breach gives rise to a cause of action for any
damages proximately caused. It is not disputed, for example, that if the
shipowner's negligence caused damages to the stevedoring contractor's
equipment, those damages would be recoverable in a direct action sounding in
tort. We can see no reason why the shipowner's liability does not in like fashion
extend to the foreseeable obligations of the stevedoring contractor for
compensation payments to the representative of a longshoreman whose death
was occasioned by the shipowner's breach of his duty to the stevedoring
contractor.
23
We do not, of course, hold that the shipowner's duty to the employer is the
same as to the employee. Nor do we disapprove the Court of Appeals' holding
that the shipowner does not owe to the stevedoring contractor the absolute duty
of seaworthiness owed to individual longshoremen. 15 But Marine Terminals'
counterclaim in this action did not rely on the unseaworthiness of the ship.
Rather it charged that Burnside had been negligent in certain particular
respects.16 And we have suggested before this that, while 'the duties owing
from (the shipowner) to (the longshoreman) were not identical with those from
(the shipowner) to (the stevedoring contractor),' the shipowner can be negligent
with respect to the stevedoring contractor as well as to the longshoreman.
Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 568, 78 S.Ct.
438, 441, 2 L.Ed.2d 491. 17 Neither court below reached the question whether
the counterclaim sufficiently alleged a breach of the duties owed by Burnside to
Marine Terminals, and relevant factual questions remain unresolved. With the
case in its present posture, therefore, we express no opinion as to whether the
conduct of Burnside's employees amounted to a breach of the duty it owed to
Marine Terminals.18 We hold only that federal maritime law does impose on the
shipowner a duty to the stevedoring contractor of due care under the
circumstances, and does recognize a direct action in tort against the shipowner
to recover the amount of compensation payments occasioned by the latter's
negligence.
24
We further note that at this stage of the case it must be assumed that Marine
Terminals was faultless vis-a-vis Burnside, for the claim that Marine Terminals
breached its Ryan warranty of workmanlike service has not yet been
adjudicated and is not before us. We decide nothing today with respect to the
interaction between the shipowner's breach of warranty claim and the
stevedoring contractor's tort claim. Marine Terminals has charged Burnside
with negligence not as a defense to the latter's Ryan claim but in a counterclaim
for damages, and we have considered that claim without regard to the
implications of the shipowner's countervailing cause of action. Our holding is
perforce limited to a rejection of Burnside's argument that 'a shipowner's
tortious conduct may be used as a shield, but not as a sword.'
IV.
26
In holding that the stevedoring contractor has a direct action in tort, we do not
preclude the possibility of a direct action under some other theory. Marine
Terminals argues in this case, for example, that just as a stevedoring contractor
impliedly warrants to a shipowner under Ryan that it will perform the
stevedoring services in a workmanlike manner, so also there are reciprocal
contractual warranties running from the shipowner to the stevedoring
contractor.19 Burnside counters with the observation that the stevedoring
contract in this case is between Marine Terminals and its affiliate Federal
Commerce, the time charterer, and that there is therefore no privity of contract
between Marine Terminals and Burnside. Because the record before us contains
neither the contract for stevedoring services nor the charter agreement, we
cannot now assess these arguments. We do not know, for instance, whether any
provisions of the time charter contain express or implied warranties which
would inure to the benefit of Marine Terminals as stevedoring contractor.20
27
Marine Terminals has also argued that, aside from any express or implied-infact contract, it has a quasi-contractual right of indemnity for the liability which
it incurred under the Act on account of the shipowner's wrong. This right,
which was evidently recognized by the District Court,21 is said not to stem
solely from the pre-existing contractual relationship between the parties, but to
be conferred by law in order to place the liability where it justly belongs.22 As
one court has described it,
28
29
30
31
32
It is so ordered.
33
Section 33, as amended in 1959, 73 Stat. 391, as set forth in 33 U.S.C. 933,
reads as follows:
If the representative decides to bring suit against the third person within six
months of the award, as in this case, the employer's liability for compensation
is reduce by the amount recovered by the representative from the third person.
See 33(f), supra, n. 1.
The District Court found that crucial factual issues existed regarding the
longshoremen's knowledge of the open hatch and the parties' relative duties of
inspection. McNeill had been present at the time the hatch lids were 'winged
out,' but the court noted that the factual question was posed whether McNeill
could reasonably have assumed that the covers would be replaced and had
merely entered the area to check it for safety.
7
The Illinois Wrongful Death Act was amended in 1967 to remove the ceiling on
damages, but the amendment was made prospective only, and the Act still
limits the recovery to $30,000 'where such death occurs on or after July 8, 1957
and prior to the effective date (August 18, 1967) of this amendatory Act of
1967 * * *.' Ill.Rev.Stat., c. 70, 2.
The District Court has reserved the question whether, suing as subrogee, the
employer's recovery would be limited by the Illinois statute:
'In our judgment, defendant's theory of a direct action cannot be supported, and
its counterclaim must be dismissed without prejudice to the filing of an
amended counterclaim which alleges a cause of action derived from the persons
entitled to compensation. If such an amendment is filed, we may then have
occasion to consider whether as subrogee or assignee, the defendant's possible
recovery is limited by the damage ceiling of the Illinois Wrongful Death Act.'
284 F.Supp., at 744745.
284 F.Supp., at 744. The District Court noted that the petitioner's theory is
summarized in 96 of the Restatement of Restitution:
'A person who, without personal fault, has become subject to tort liability for
the unauthorized and wrongful death of another, is entitled to indemnity from
the other for expenditures properly made in the discharge of such liability.'
10
11
Ibid.
12
Both the District Court and the Court of Appeals relied upon Doleman v.
Levine, 295 U.S. 221, 55 S.Ct. 741, 79 L.Ed. 1402, citing it for the proposition
that the employer's 'rights are derived from the person entitled to
compensation.' The decision, however, held only that, under the predecessor of
33, the employer could not maintain a wrongful death action in his own name
if he was subrogated to the rights of only one of the dependents entitled to bring
the action. Not a word of the opinion in that case suggests that 33 of the Act
was the only source of the employer's rights against third persons for liability to
his employees.
14
The District Court rested on the following rationale of the District Court for the
Southern District of California in California Casualty Indemnity Exchange v.
United States, 74 F.Supp. 401, 404:
'The right of recoupment (under the federal Act) on the ground of third party
liability is not a right created in the libelants by Statute as in the California
Compensation Act. * * * The difference lies in the fact that the rights of the
employer and its insurance carrier under the Longshoremen's Act result solely
by an assignment of the original rights of the injured person, which original
rights are not created by the Statute. The act of the injured person, or
representatives of decedent in seeking and accepting compensation under the
Longshoremen's Act operates as an assignment of those rights and creates no
new right of action in the employer as is done in the California Law. The
assignee has and can have no greater right than the assignor. * * *' It is clear
even from the face of this passage, however, that the court in California
Casualty was addressing itself to a different question from that presented by the
instant case. The plaintiffs there had brought suit 'as subrogee insurance
carrier(s),' id., at 403, and the holding was only that when the employer or his
insurance carrier sues as subrogee, his rights are derived from and therefore
identical to those of the employee. The case did not hold that the employer's
remedy as subrogee is exclusive.
Nor did the District Court for the Northern District of Ohio so hold in Reiss
S.S. Co. v. Cyr, 138 F.Supp. 834, aff'd, 6 Cir., 229 F.2d 849, another case
relied on by the District Court below. Language in the Reiss opinion to the
effect that 33 'governs exclusively in instances of third party liability,' id., at
836, referred only to the relationship between employer and employee under the
Act, not to the relationship between the employer and third parties.
15
See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099;
Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561.
16
17
18
The Federal District Court for the Southern District of California has held that
the shipowner owes the stevedoring contractor at least the following
obligations:
'(1) to exercise ordinary care under the circumstances to place the ship on
which the stevedoring work is to be done, and the equipment and appliances
aboard ship, in such condition that an expert and experienced stevedoring
contractor, mindful of the dangers he should reasonably expect to encounter,
arising from the hazards of the ship's service or otherwise, will be able by the
exercise of ordinary
care under the circumstances to load or discharge the cargo, as the case may be,
in a workmanlike manner and with reasonably safety to persons and property;
and (2) to give the stevedoring contractor reasonable warning of the existence
of any latent or hidden danger which has not been remedied and is not usually
encountered or reasonably to be expected by an expert and experienced
S.Ct. 56, 4 L.Ed.2d 62. They have on occasion, however, stated or intimated
that the shipowner makes certain affirmative warranties to the stevedoring
contractor whose breach would support an action for damages. See, e.g., The
No. 34, 2 Cir., 25 F.2d 602; Pettus v. Grace Line, Inc., 2 Cir., 305 F.2d 151, 155
(dissenting opinion of Judge Clark); Cusumano v. Wilhelmsen, D.C., 267
F.Supp. 164; Ring v. Motor Vessel Cape Clear, D.C., 226 F.Supp. 709. See
also Mowbray v. Merryweather, (1895) 2 Q.B. 640. See generally Proudfoot,
'The Tar Baby': Maritime Personal-Injury Indemnity Actions, 20 Stan.L.Rev.
423, 442445 (1968).
20
21
22
This Court has recognized the objective under the Compensation Act of 'placing
the burden ultimately on the company whose default caused the injury.' Italia
Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315,
324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732. And see Reed v. The Yaka, 373 U.S.
410, 414, 83 S.Ct. 1349, 1353, 10 L.Ed.2d 448.
23
Davis v. American President Lines, D.C., 106 F.Supp. 729, 730. For other
decisions recognizing such a quasi-contractual right of indemnity under federal
maritime law, see, e.g., Parenzan v. Iino Kaiun Kabushiki Kaisya, 2 Cir., 251
F.2d 928, cert. denied, sub nom. International Terminal Operating Co. v. Iino
Kauin Kaisha, 356 U.S. 939, 78 S.Ct. 781, 2 L.Ed.2d 814; American President
Lines, Ltd. v. Marine Terminals Corp., 9 Cir., 234 F.2d 753, cert. denied, 352
U.S. 926, 77 S.Ct. 222, 1 L.Ed.2d 161; Berti v. Compagnie De Navigation
Cyprien Fabre, 2 Cir., 213 F.2d 397; States S.S. Co. v. Rothschild Int'l
Stevedoring Co., 9 Cir., 205 F.2d 253; United States v. Rothschild Int'l
Stevedoring Co., 9 Cir., 183 F.2d 181; Standard Oil Co. v. Robins Dry Dock &
Repair Co., 2 Cir., 32 F.2d 182; McFall v. Compagnie Maritime Belge, 304
N.Y. 314, 107 N.E.2d 463.
24
See also Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co.,
376 U.S. 315, 320, 84 S.Ct. 748, 751, 11 L.Ed.2d 732.
25
See also 350 U.S., at 132, n. 6, 76 S.Ct., at 236. The Ryan opinion also
recognized the difference between, and treated separately, the noncontractual
right of indemnity and the claim for contribution from a joint tortfeasor. Id., at
133, 76 S.Ct., at 237.
26
Some have thought that the exclusivity of the employer's statutory liability to
the employee would prevent the shipowner from asserting a right of indemnity
against the stevedoring contractor based on the latter's wrong to the employee.
See, e.g., Ryan, supra, 350 U.S., at 142, 76 S.Ct., at 242 (Black, J., dissenting);
Brown v. American-Hawaiian S.S. Co., 3 Cir., 211 F.2d 16; Slattery v. Marra
Bros., 2 Cir., 186 F.2d 134, cert. denied, 341 U.S. 915, 71 S.Ct. 736, 95 L.Ed.
1351. But there is no such barrier, of course, to a direct action by the
stevedoring contractor against the shipowner.